COVID-19 Safety Considerations and Workplace Liability

Last week, the family of a Walmart employee who died after contracting COVID 19 brought a negligence and wrongful death suit against the company, alleging that it failed to follow CDC guidelines in providing adequate protection for worker safety. This lawsuit highlights the importance of the CDC guidelines not only in protecting employees’ health, but also in minimizing employer liability. Lloyd Gosselink has prepared information on how guidance from the CDC, OSHA, and Texas Department of State Health Services can impact workplace liability for both public sector and private sector employers.

Guidance from the Center for Disease Control (“CDC”) affects workplace liability for both public and private employers. On March 21, 2020, the CDC published interim guidance for all employers that provides best practices to plan for and respond to COVID 19. The CDC also published interim guidance specifically for employers providing “essential” services, which outlines best practices when an asymptomatic employee suspects exposure to COVID-19, such as monitoring for infections, requiring PPE, maintaining social distance, and disinfecting the workplace.

Though the CDC guidance is not binding, Texas’s statewide order directs employers to follow the guidance, and courts may interpret the practices set out by the CDC as the “standard of care” that determines employer liability in a civil lawsuit.

Guidance from the Occupational Safety and Health Administration (“OSHA”) also impacts private and public employers. OSHA has published general guidance on “Preparing Workplaces for COVID-19,” and it also published a poster containing 10 steps to reduce workplace exposure. Private employers can be held liable under OSHA’s general duty clause, which creates a duty to provide a “place of employment…free from recognized hazards that are causing or are likely to cause death or serious physical harm.” 29 U.S.C. § 654(a)(1). Though public employers cannot be held liable under this statute, courts often use OSHA guidelines to determine the “standard of care” in civil litigation. Texas public employers should also read the Texas Department of State Health Services (“DSHS”) recommendations for “Texas Businesses Remaining Open,” as well as DSHS’s “Letter to Texas Employers.”

Employers should also be aware of various reporting requirements that may be triggered when an employee contracts COVID 19. For private employers, OSHA has published interim guidance for recording employee COVID 19 illnesses under OSHA’s recordkeeping requirements when the illness (1) is confirmed as COVID 19; (2) is work-related as defined by 29 C.F.R. § 1904.5; and (3) involves one or more of the general recording criteria in 29 C.F.R. § 1904.7. For Texas public employers, only a small number of public entities (such as school authorities and penal institutions) listed in the Texas Health and Safety Code Section 81.042 must report COVID 19 illnesses to the DSHS.

The importance of workplace safety will continue to increase as employees return to work and we recommend that all employers to take affirmative steps now to make the work environment as safe as possible for workers to return when they can. To do this, employers should ensure that they are not only taking steps to provide the safest environment possible that are based on the best information available, but they are also openly communicating with their employees so their workers know what steps they are taking for their protection.

This summary was prepared by the Firm’s Employment Law Practice Group: Sheila Gladstone, Sarah Glaser, and Emily Linn. If you would like additional information on how these guidelines might impact your organization, please contact Sheila at 512.970.5815 or sgladstone@lglawfirm.com, Sarah at 512.221.6585 or sglaser@lglawfirm.com, or Emily at 214.755.9433 or elinn@lglawfirm.com.

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